Citation Nr: 1753792	
Decision Date: 11/24/17    Archive Date: 12/01/17

DOCKET NO.  15-18 119	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus, type 2, to include as due to exposure to herbicides.  

2.  Entitlement to service connection for prostate cancer, to include as due to exposure to herbicides.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

S. Yuskaitis, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1959 to March 1989.

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  A September 2013 rating decision denied entitlement to service connection for prostate cancer.  A March 2015 rating decision denied service connection for diabetes mellitus, type 2. 

The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a September 2017 videoconference hearing.  A transcript of the hearing is of record.

The issues of service connection for temporomandibular joint disorder, erectile dysfunction and urinary incontinence have been raised by the record in July 1990 and August 2013 statements, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDINGS OF FACT

1.  Resolving any doubt in the Veteran's favor, exposure to herbicides at Udorn Royal Thai Air Force Base in Thailand has been established.  

2.  The Veteran has diagnoses of diabetes mellitus, type 2 and prostate cancer which are presumed related to his in-service herbicide exposure. 


CONCLUSION OF LAW

1.  The criteria for service connection for diabetes mellitus, type 2, have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).


2.  The criteria for service connection for prostate cancer have been met.  38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist 

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017).  Given the Board's favorable decision in service connection diabetes mellitus, type 2, and prostate cancer, the Board finds that all notification and development action needed to fairly adjudicate the appeal have been accomplished.

II. Service Connection

Service connection may be granted for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. § 3.303 (2017).  In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in-service disease or injury and the current disability.  Hickson v. West, 12 Vet. App. 247 (1999). 

Service connection may also be granted for certain specified diseases on a presumptive basis if a veteran was exposed to Agent Orange during active service.  See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(b), 3.309(e).  A veteran is presumed exposed to Agent Orange if he or she had active military, naval, or air service, in the Republic of Vietnam from January 9, 1962 through May 7, 1975, "unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service."  38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). 
Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure.  38 U.S.C. § 1116; 38 C.F.R. § 3.307.

If a Veteran was exposed to an herbicide agent during active military, naval or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307 (d) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes or adult-onset diabetes), hairy cell leukemia and other chronic B-cell leukemias, Hodgkin's disease, ischemic heart disease, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposis's sarcoma, or mesothelioma).  38 C.F.R. § 3.309 (e).

The United States Department of Defense has confirmed that herbicides were used within the Thailand bases to control weeds from February 28, 1961 to 
May 7, 1975 at base perimeters.  The majority of troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases (AFB) of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang.  See M21-1, Part IV, Subpart ii, Chapter 1, Section H.5.b.  If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis.  Id.  This applies only during the Vietnam Era.  Id.

The Veteran contends that his diabetes mellitus, type 2 and prostate cancer are due to exposure to Agent Orange during service in Thailand, such that presumptive service connection is warranted. 

Initially, the Board notes that the Veteran has diagnoses of diabetes mellitus type II and prostate cancer.  

The Veteran asserts he was exposed to herbicides while in-service in Thailand.  The Veteran's service personnel records show that he was stationed with the 432nd Tactical Fighter Wing at Udorn Royal Thai Air Force Base (RTAFB), Thailand from December 1973 to December 1974.  The Veteran's DD-214 reflects his military occupational specialties (MOS) was a cost and management analysis technician.  During his September 2017 hearing, the Veteran said that while he was stationed at Udorn, he lived in barracks about 70 feet from the perimeter of the base.  He recalled walking the perimeter of the base in order to go to the local village for shopping a couple times a month.  He further described substances from the perimeter blowing into his barracks. 

Separately, the Veteran submitted photographs showing the proximity of his barracks (number three) to the perimeter fence at Udorn RTAFB.  The Veteran has also consistently provided in correspondence that his barracks were 20 to 25 yards (60 to 75 feet) and the barracks only had a ventilation system that ran along the top of the barracks and faced the perimeter.  The Veteran also stated his barrack had open screening across the top side of the room facing the perimeter.  See e.g., August 2016 Decision Review Officer (DRO) hearing; January 2013 Statement in Support of Claim. 

The Board notes that the RO attempted to verify the Veteran's herbicide exposure through the Defense Personnel Records Imagining System (DPRIS).  In August 2014, the DPRIS informed the RO that the RO's request was incomplete as it only provided the 3800th Air Base Wing without the Veteran's unit of assignment information.  Although the RO sent another request including the 432nd Tactical Fighter Wing in January 2015, a DPRIS response was not associated with the claims file.  However, the Board is ultimately persuaded by the Veteran's competent testimony describing his in-service experiences.  See Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398, 403 (1995).  Despite the fact that there is no clear evidence of herbicide exposure due to his Thailand service shown in the record, the Veteran's self-reports of the close proximity between his living quarters to the perimeter are facts consistent with the circumstances and conditions of his service at the Udorn AFB in Thailand during the Vietnam era.  The evidence of record clearly establishes that the Veteran had service at one of the designated Thailand military bases.  He also served on active duty for a period of the Vietnam era during which VA has acknowledged that herbicides were used near those air base perimeters in Thailand.  Further, he has provided competent testimony that establishes service near the base perimeter and the Board finds that such to be consistent with the circumstances, places, and types of his service.  There is no evidence in the file to doubt these statements and so the Board finds the Veteran's account of herbicide exposure during service to be credible.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994). 

Resolving doubt in the Veteran's favor, this evidence establishes on a facts-found basis that the Veteran was exposed to herbicides while serving at Udorn RTAFB.  See M21-1, Part IV, Subpart ii, Chapter 1, Section H.5.b.  Given the above, the Board concludes that the Veteran is entitled to presumptions based on exposure to herbicides.  See 38 C.F.R. §§ 3.307, 3.309 (2017). 

Because both diabetes mellitus and prostate cancer are conditions for which service connection can be granted on a presumptive basis when exposure to herbicides is established, entitlement to service connection for diabetes mellitus and prostate cancer are granted.  38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER

Entitlement to service connection for diabetes mellitus, type 2, is granted.

Entitlement to service connection for prostate cancer is granted.





____________________________________________
LESLEY A. REIN
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs